Special Concurrence

In a case of first impression in the Fourth Circuit, the Court held that an employer may be liable for sexual harassment committed by non-employees where the employer either knew or should have known of the harassment and failed to take appropriate action to halt it. EEOC v. Cromer Food Servs., Inc., 2001 U.S. App. LEXIS 4279, at * 13 (4th Cir. Mar. 3, 2011).

The United States Supreme Court decision in Thompson v. North American Stainless, LP (No. 09-291, Jan. 24, 2011) significantly increased the likelihood of “retaliation-by-association” claims brought by employees who have close relationships with coworkers who engage in protected activity.

In Commonwealth v. Morris, the Supreme Court of Virginia ruled unanimously that a common law writ of coram nobis could not be used to reopen convictions imposed on immigrants who were ordered deported as a result of their convictions. Judge Dean Worcester of the Circuit Court for Loudon County, however, found the Supreme Court’s decision "unpersuasive" and announced he would not follow it.

The Supreme Court of Virginia recently decided a pair of unanimous decisions clarifying the “right result for the wrong reason” doctrine. Virginia courts have long recognized that an appellate court may affirm the judgment of a trial court even where the trial court reached the right result for the wrong reason. Eason v. Eason, 204 Va. 347 (1963).

On November 2, 2010, the Supreme Court of the United Stated heard oral argument in Staub v. Proctor Hospital (No. 09-400), a case that raises the issue of whether an employer may be held liable for the unlawful intent of officials who caused or influenced the ultimate employment decision but did not make it.